Under current Texas law, it is perfectly legal for a driver suspected of driving while intoxicated to refuse to give a breath specimen when asked by a police officer to do so. Citizens suspected of driving while intoxicated (DWI) in Texas have the absolute right to refuse testing. Refusal automatically does incur an automatic license suspension, although this can be appealed if contested through an ALR hearing. The citizen accused also has the right refuse to answer questions that may be incriminating.

Many people have questions regarding the mandatory “no refusal" weekends for DWI arrests in Texas. The question always is, “ do I HAVE to give my blood to the police?" Due to the increase in available information and knowledge for people in regards to how to respond to a DWI investigation, many citizens are exercising their constitutional right to refuse to take the standardized field sobriety tests (SFST’s) or provide a Breath Sample.

Many people seemingly submit to the taking of a breath or blood specimen when under investigation for a DWI simply because they believe the arresting officer will be able to take it given the current state of DWI blood search warrants. Without a blood search warrant signed by a judge, the requirements for a blood test to be admissible in Texas are as follows: a) that you were given the option to take or refuse a blood test by the police officer (unless, of course, a blood search warrant has already been obtained); b) the blood sample was taken properly by trained medical personnel; c) all sanitary measures and safety precautions were taken when obtaining the blood sample (the chain of custody must be proven); and d) the blood sample was properly inspected prior to testing.

Police officers are becoming increasingly frustrated by the lack of cooperation from citizens in assisting them in helping gain a conviction for DWI. One of the new methods is the use of blood search warrants. Texas Senate Bill 261 and Texas House Bill 747 significantly expands the authority for police officers to obtain a sample of blood for DWI suspects without a search warrant. Currently, Texas law mandates the taking of blood without a warrant in intoxication manslaughter cases where a fatality has occurred. As well, it can be taken in intoxication assault cases where serious bodily injury has occurred or where someone other than the DWI suspect has been taken to a hospital or medical clinic. To take your blood in those cases, however, the officer must have some belief that the subject is under the influence of some intoxicating substance. This law was created to try and ensure that the blood evidence is obtained without delay where there might not be enough time to get a judge or magistrate to sign off on a blood search warrant. Blood can also be obtained without a warrant according to the new law where a suspect is accused of driving while intoxicated with a child passenger, and where a person has at least two previous DWI convictions on their record.

The distinguishing characteristic of the new law is that it gives the police authority to take the samples without your consent or the approval of a neutral, detached judge through the search warrant process. Before, the law only provided the taking of blood without a warrant in intoxication manslaughter cases (fatalities) and Intoxication Assault cases (serious bodily injury). That law was written to ensure that a blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant before the evidence might be lost.

The current fade on Texas DWI law is the “no refusal" weekend and mandatory blood draws. Effectively, police officers have found a loophole and have circumvented obtaining the blood sample in other cases than the ones described above. During the “no refusal" weekends, magistrate judges work 24 hour shifts and effectively sign every blood search warrant that is presented to them. Regardless, however, it is best to still refuse the taking of your blood until the blood search warrant is obtained. Whether the mandatory blood draw weekends are constitutional is another story altogether. Because most all, if not all, of the blood search warrants that are presented to the magistrate judges are signed, it is impossible to know whether the warrant actually contains enough information to justify the intrusion of taking the blood from a citizen's body.

The best advice if you are pulled over under suspicion of driving while intoxicated is to say as little as possible, politely refuse the field sobriety tests, and also refuse to give a breath or blood specimen. Simply put, make the police officer obtain a blood search warrant based on whatever information they can gather on their own. A search warrant requires the police to develop and determine probable cause for the arrest to believe the person was driving while intoxicated. They will try to use the results of the field sobriety testing (if you refuse, there will be none to use), any incriminating and damaging answers to police questioning (so say as little as possible), and also any observed driving clues to develop the probable cause evidence needed to get the blood search warrant. However, it should be noted that the blood search warrant may be challenged more easily if the person accused refuses to submit to any and field sobriety tests.

It should also be noted that the police will not seek blood search warrants in all cases where a refusal has occurred. However, it is true that the frequency of obtaining blood search warrants is increasing among law enforcement personnel. Regardless, a reasonable course of action for the person under suspicion of driving while intoxicated is to say as little as possible when responding to questioning, while also being as polite as possible. The driver should also politely refuse all field sobriety testing and should never give consent to the taking of a sample of their blood or a sample of their breath. And it is also very important for a driver to never provide a blood sample thinking the police will get a warrant anyway. If the police choose to get a blood search warrant, then cooperate and do not physically resist. If they go this route, then it is best to then hire an experienced DWI Defense attorney who can help attack the blood search warrant and blood results in open court.

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